Gardiner and RadioWorks Ltd - 2004-035
- Joanne Morris (Chair)
- Diane Musgrave
- Tapu Misa
- Paul France
- Daniel Gardiner
ProgrammeRadio Pacific talkback
Channel/StationRadio Pacific # 2
Radio Pacific – talkback host Mark Bennett – critical of appointment of gay or lesbian police liaison officer – comments said to encourage denigration – inaccurate – unfair
Principle 7 and Guideline 7a – odious comment – obsolete stereotypes – comparators used displayed illegal behaviour – high threshold for breach not attained
Principle 5 and Guideline 5c – not applicable – not upheld
Principle 6 and Guideline 6c – not applicable – not upheld
This headnote does not form part of the decision
 The appointment of a gay and lesbian police liaison officer in Hamilton was the subject of critical comment by the host (Mark Bennett) in a broadcast on Radio Pacific talkback. The comments were broadcast at about 3.15pm on Wednesday 15 October 2003.
 Daniel Gardiner complained to The RadioWorks Ltd, the broadcaster, that the comments encouraged discrimination against gays and lesbians as they were equated with criminal groups. He also alleged a breach of other broadcasting standards.
 In response, The RadioWorks emphasised that Radio Pacific was a talkback station and that the host’s comments, which were humorous and satirical or a genuine expression of opinion, did not breach the standards. It declined to uphold the complaint.
 Dissatisfied with The RadioWorks’ decision, Mr Gardiner referred his complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.
For the reasons below, the Authority declines to uphold the complaint.
 The members of the Authority have listened to a tape of the programme complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.
 Radio Pacific is a talkback radio station and The RadioWorks, the broadcaster, advised that Radio Pacific is referred to as the “people’s parliament”, during which the hosts are encouraged to express their opinions.
 The host (Mark Bennett) commented critically about the appointment of a gay and lesbian police liaison officer in his opening remarks at about 3.15pm on 15 October 2003. Contending that the law relating to homosexuality and homosexuals had been liberalised during the term of the present government, he asked why a liaison officer should not also be appointed for necrophiliacs, sado-masochists and homophobes.
 Daniel Gardiner complained to The RadioWorks about the host’s remarks. Noting that one caller had then suggested a police liaison officer for paedophiles, he contended that the comparison between one perfectly legitimate group with two groups who took part in illegal behaviour was unfair. The comments, he added, both denigrated and encouraged discrimination against the gay and lesbian communities.
 In view of some other remarks made by the host, he argued that the comments breached broadcasting standards in that they encouraged alarm, that they were factually inaccurate and failed to distinguish between fact and opinion.
 Mr Gardiner stated that he welcomed debate, but objected to the spread of misinformation and the use of denigratory comments. He sought an apology.
 The RadioWorks assessed the complaint under Principle 7 and Guideline 7a of the Radio Code of Broadcasting Practice, Principle 5 and Guideline 5c, Principle 6 and Guideline 6c. They provide:
In programmes and their presentation, broadcasters are required to deal justly and fairly with any person taking part or referred to.
5c Programmes shall not be presented in such a way as to cause panic, or unwarranted alarm or undue distress.
In the preparation and presentation of news and current affairs programmes, broadcasters are required to be truthful and accurate on points of fact.
6c Factual reports on the one hand, and opinion, analysis and comment on the other, shall be clearly distinguished.
In programmes and their presentation, broadcasters are required to be socially responsible.
7a Broadcasters will not portray people in a manner which encourages denigration of or discrimination against any section of the community on account of gender, race, age, disability, occupational status, sexual orientation; or as the consequence of legitimate expression of religious, cultural or political beliefs. This requirement does not extend to prevent the broadcast of material which is:
i) factual; or
ii) a genuine expression of serious comment, analysis or opinion, or
iii) is by way of legitimate humour or satire.
Broadcaster’s Response to the Complainant
 The RadioWorks declined to uphold the complaint. Dealing first with Principle 7 and Guideline 7a, it contended that the comment was exempt from the requirement in the Guideline as it was a comment of “legitimate humour or satire”. At no time, it wrote, was the statement “intended to be taken seriously”.
 As for Principle 6, The RadioWorks said the host’s comments were clearly distinguishable from the news bulletins broadcast half-hourly. It denied that the comments had caused panic or alarm or had been unfair and in breach of Principle 5. The Radio Code, The RadioWorks contended, allowed broadcasters “to express their genuine opinion”.
Referral to the Authority
 With regard to the Principle 7 aspect of the complaint, Mr Gardiner said that the host had repeated his comment on a number of occasions over the next two days. Further, the host’s suggestion for a liaison officer appointed to a criminal minority was “ludicrous” and moved beyond satire into denigration.
 In support of his argument, Mr Gardiner referred to a decision made by the Canadian Broadcasting Standards Council which had upheld a complaint against a broadcaster which had made what were said to be similar connections between homosexuality and paedophilia.
 Mr Gardiner also questioned how listeners were able to distinguish between the host’s factual statements and those which were opinion. He recalled that the host’s comments on 15 October caused offence within the gay community, and that the host’s response later had been to taunt members of the community during his sessions on Radio Pacific. The host’s “inflammatory” comments, Mr Gardiner wrote, were used as a “springboard for callers to vent their prejudices about gays and lesbians, not to stimulate debate over a police liaison officer”.
Broadcaster’s Response to the Authority
 The RadioWorks repeated that the two main reasons for declining to uphold the complaint were:
- the host’s legitimate use of humour and satire, and talkback
- the host’s expression of genuinely-held albeit controversial beliefs.
 Hosts expressing opinions, The RadioWorks wrote, were the “lifeblood of any commercial talkback radio station”.
 On the basis that talkback radio is seldom a news or current affairs programme (other than the scheduled news bulletins), the Authority concludes that Principle 6 is not applicable to the complaint about a talkback host’s comments about the appointment of a gay and lesbian police liaison officer. The host’s comment about a current issue cannot be described as a current affairs programme, as that genre involves informed discussion in which a range of views are advanced about a current issue. As the critical comments focused on a group rather than on an individual, the Authority rules that the provision set out in Guideline 7a of Principle 7 is more relevant than Principle 5.
 The comments complained about were made in the robust environment of talkback radio and the Authority accepts that they were made, as is the practice in that situation, with the intention of provoking debate. Although intended to be provocative rather than a considered opinion, the comments used obsolete stereotypes which many, including the Authority, consider ill-informed and distasteful. The Authority considers the use of the comparator groups was inflammatory. It notes, however, that the complainant advised that the reference to paedophiles was not made by the host but by a caller.
 The RadioWorks contended that the comments were exempt from the prohibition on encouraging denigration of or discrimination against groups as they were by way of legitimate humour. It also contended that they were a genuine expression of serious opinion.
 The Authority accepts neither of these contradictory excuses. While it has some appreciation that the comments might have been made in an attempt to be humorous, it considers that the attempt did not succeed. It does not accept that such ostensibly provocative remarks were the genuine expression of serious opinion.
 The Authority considers the comments were on the fringe of acceptability and that the complaint, that they breached Guideline 7a of Principle 7, was appropriately made. Nevertheless, although the comments were close to the border of what amounts to “hate” speech, the Authority concludes that the standard was not transgressed. As is explained further below, it reaches this conclusion on the basis that the Bill of Rights’ protection of the freedom of expression sets a high threshold before a breach of Guideline 7a takes place.
 Section 14 of the New Zealand Bill of Rights Act 1990 affirms and protects freedom of expression. While it is the clear intention of the Broadcasting Act to limit freedom of expression, s.5 of the New Zealand Bill of Rights Act provides that the right to freedom of expression may only be limited by “such reasonable limits which are prescribed by law as can be demonstrably justified in a free and democratic society”. Accordingly, where the Authority is faced with a choice about the exercise of its powers, it must do so in a manner which is consistent with the New Zealand Bill of Rights Act. Applying this imperative to the facts of the present case, the Authority considers that the right to free speech is not restricted so as to prohibit the particular comments complained about.
For the reasons above, the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
1 April 2004
The following correspondence was received and considered by the Authority when it determined this complaint:
1. Daniel Gardiner’s Complaint to The RadioWorks Ltd – 21 October 2003
2. The RadioWorks’ Response to the Complainant – 13 November 2003
3. Mr Gardiner’s Referral to the Broadcasting Standards Authority – 20 November 2003
4. The RadioWorks’ Response to the Authority – 22 December 2003